Strauss N.O. and Another v Terblanche N.O. and Others (5315/2017) [2018] ZAFSHC 105 (7 June 2018)

Strauss N.O. and Another v Terblanche N.O. and Others (5315/2017) [2018] ZAFSHC 105 (7 June 2018)

The court held that although the first defendant and/or Pro-Spes Business Trust may be liable on the contract due to impossibility of performance, the plaintiffs were required to comply with the contractual term mandating a written demand before cancelling the contract or instituting action. The plaintiffs failed to comply with this condition, rendering their action premature. The exception was therefore upheld as it disposed of the action in its entirety.

Citation
[2018] ZAFSHC 105
Parties
Plaintiff: Sandra Strauss N.O.; Plaintiff: Johann Wolmarans N.O.; Defendant: Charl Jean Terblanche N.O.; Defendant: Mark John Azar N.O.; Defendant: Registrar of Deeds, Bloemfontein; Defendant: Charl Jean Terblanche; Defendant: Wynand Daniël Botha
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 June 2018
Case Number
5315/2017
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld; plaintiffs' action dismissed as premature.
Judges
Mhlambi
Legal Topics
Sale of Immovable Property, Impossibility of Performance, Contract Cancellation, Restitutio in Integrum
Civil Procedure Land and Property Sale of Immovable Property Impossibility of Performance Contract Cancellation Restitutio in Integrum

Case Brief

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Parties

Sandra Strauss N.O.

Plaintiff

Johann Wolmarans N.O.

Plaintiff

Charl Jean Terblanche N.O.

Defendant

Mark John Azar N.O.

Defendant

Registrar of Deeds, Bloemfontein

Defendant

Charl Jean Terblanche

Defendant

Wynand Daniël Botha

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs' particulars of claim disclose a cause of action in light of the alleged impossibility of performance regarding the sale and transfer of Oubos 28.
  2. 2 Whether the plaintiffs were required to serve a written demand before cancelling the contract as per clause 14 of annexure 'D'.
  3. 3 Whether the exception raised by the defendants disposes of the action as a whole.

Ratio Decidendi

The court held that although the first defendant and/or Pro-Spes Business Trust may be liable on the contract due to impossibility of performance, the plaintiffs were required to comply with the contractual term mandating a written demand before cancelling the contract or instituting action. The plaintiffs failed to comply with this condition, rendering their action premature. The exception was therefore upheld as it disposed of the action in its entirety.

Court Disposition

Exception upheld; plaintiffs' action dismissed as premature.

Orders

  • The exception is upheld with costs.